Who Can Contest a Will in NSW? A Guide by Penrose Lawyers

Contesting a will is not a matter taken lightly, and the laws in NSW are designed to ensure that only those with a legitimate claim and relationship to the deceased can challenge the provisions of a will. It’s a process that requires a delicate balance between respecting the wishes of the departed and ensuring fairness to those left behind.

Eligibility to Contest a Will in NSW

In NSW, the Succession Act 2006 section 57, outlines the eligible persons who may apply to the court for a family provision order. This includes:

• Immediate family members: Spouses, children, de facto, former spouses.
• Individuals who were dependent on the deceased: This can include grandchildren or members of the deceased’s household who were wholly or partly dependent on the deceased at any particular time.
• Close personal relationships: Persons who were living in a close personal relationship with the deceased at the time of their death.

Can relatives contest a will? 

• A sibling, grandchild, niece, or stepchild cannot contest a Will unless:
• They cohabited with the deceased, and
• They were either wholly or partly reliant on the deceased for support.
• A beneficiary is eligible to contest a Will if:
• They are considered an “eligible person.”; and
• Adequate provision was not made for them in the will.
• Legal advice is recommended for those considering contesting a Will. 

The Process of Contesting a Will

The process involves several steps, starting with an application for a family provision order within 12 months of the deceased’s passing. It’s a complex journey, requiring the guidance of experienced legal professionals to navigate the intricacies of the law.

An application may be made whether or not the administration of the estate of the deceased has been granted.

How Penrose Lawyers Can Assist

At Penrose Lawyers, we concentrate on providing compassionate and comprehensive legal advice in matters of will disputes. Our team is adept at handling the sensitive nature of these cases, ensuring that your rights are protected and your voice is heard.

How much does it cost to contest a Will in NSW? 

Contesting a will in New South Wales (NSW), Australia, can vary significantly in cost due to a range of factors, including the complexity of the case, the solicitor’s fees, and the length of time it takes to resolve the dispute. Generally, legal fees for contesting a will might start from a few thousand dollars for very simple cases but can escalate to tens of thousands of dollars or more for complex cases that require extensive litigation and unfortunately in some cases eat into the worth of the estate.

Most solicitors in NSW offer an initial consultation to discuss the specifics of your case, often at a reduced rate or sometimes free of charge. This can provide a clearer idea of the potential costs involved. Additionally, some solicitors may offer to take on cases on a “no win, no fee” basis, meaning they only get paid if you win the case. However, it’s important to carefully review the terms of such arrangements, as you might still be liable for disbursements or the other party’s legal costs if you lose.

Given the potential for high costs, it’s advisable to seek legal advice early to understand the merits of your case and explore all available options before deciding to contest a will.

Understanding the Emotional Dynamics

Contesting a will is more than a legal process; it’s an emotionally charged journey that can affect family relationships long after the Court’s decision. At Penrose Lawyers, we approach each case with sensitivity and discretion, recognising the importance of balancing legal objectives with the preservation of family ties. Our aim is to navigate these waters with empathy, ensuring that all parties feel heard and respected throughout the process.

The Importance of a Valid Will

A valid will is the cornerstone of a smooth succession process. It outlines the deceased’s wishes regarding the distribution of their estate and can significantly reduce the likelihood of disputes. However, even with a valid will in place, disputes can arise, often due to changes in family dynamics, perceived inequities, or concerns about the deceased’s capacity at the time the will was made. Understanding the legal requirements for a valid will in NSW is crucial, and Penrose Lawyers can provide guidance on this front, ensuring that your rights and interests are adequately protected.

Grounds for Challenging a Will

Challenging a will goes beyond merely feeling left out or slighted by the deceased’s final wishes. There must be substantial grounds for a challenge, such as:

• The will is a result of undue influence or fraud.
• The will-maker lacks the mental capacity to make a will.
• Will has been superseded by a more recent will.

Mediation: A Path to Resolution

Before any matter proceeds to Court, mediation is often recommended as a means to resolve disputes amicably. This process involves all parties coming together with a neutral mediator to discuss their concerns and work towards a mutually acceptable solution. Mediation can be a less adversarial and more cost-effective approach than Court proceedings, and it offers a greater degree of control over the outcome for all involved. Penrose Lawyers has extensive experience in mediation, guiding clients through these discussions with a focus on achieving fair and equitable resolutions.

The Role of the Court

If mediation does not result in a resolution, the matter may proceed to Court. The Court will consider various factors, including the claimant’s relationship to the deceased, their financial needs, and the intentions of the deceased as expressed in the will amongst other factors taken into consideration. The Court’s aim is to ensure that the distribution of the estate is fair and reasonable, taking into account the legitimate needs and interests of all parties. Penrose Lawyers is adept at representing clients in Court, providing robust advocacy and strategic advice to navigate the complexities of the legal system.

Is there a time limit for contesting a Will in NSW? 

You have up to 12 months from the deceased’s date of death to make an application for a family provision order with the Supreme Court of NSW.

In instances where the exact date of death is ambiguous, the Court has the authority to establish a deemed reasonable date or time of death.

Should you lodge your challenge post the 12-month period, it’s necessary to demonstrate adequate reasons for the delay in your application before you will be eligible to make the application.

Protecting Your Interests

Whether you are considering contesting a will or are an executor facing a challenge, it’s essential to seek professional legal advice. The team at Penrose Lawyers is well-versed in the intricacies of will disputes, and we are committed to protecting your interests and achieving the best possible outcome. Our approach is tailored to each client’s unique situation, combining legal expertise with a deep understanding of the emotional and practical aspects of these disputes.

Planning for the Future

Looking beyond the immediate challenge of contesting a will, it’s important to consider the broader implications for your estate planning. Penrose Lawyers can assist with reviewing and updating your will and estate plan to reflect your current wishes and circumstances, helping to minimise the potential for disputes in the future. Our holistic approach ensures that your estate planning aligns with your long-term goals and provides peace of mind for you and your loved ones.

Conclusion

Navigating the complexities of contesting a will in NSW requires not only a deep understanding of the law but also a compassionate approach that respects the emotional challenges involved. At Penrose Lawyers, we are committed to providing our clients with the highest level of legal expertise and emotional support during these difficult times. If you believe you have grounds to contest a will, or if you have any questions about the process, we encourage you to get in touch with our team at Penrose Lawyers. Let us help you find the clarity and resolution you need.

Frequently Asked Questions